Inspire. July.

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I’m not feeling particularly inspired this month after last month’s partisan, rogue display by the Supreme Court, so I will leave you with two quotations that I listened to today on Jon Meacham’s podcast, Reflections of History, both by Supreme Court Justice Thurgood Marshall:

We must never forget that the only real source of power that we as judges can tap is the respect of the people. We will command that respect only as long as we strive for neutrality. If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the long run, however, we will cease to be perceived as neutral arbiters, and we will lose that public respect so vital to our function.

Thurgood Marshall, 1981

I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. ‘We the people’ no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice’ and ‘equality,’ and who strived to better them.

Thurgood Marshall, on the Bicentennial of The Constitution, 1987

Election Connection – Supreme Court Edition

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Click picture for Website.

I have been struggling as I know many people around the country are struggling, especially women, girls, and trans and non-binary people with uteruses. I can’t promise that my language will be consistently inclusive in this writing. I can promise to try. Not mentioning trans/NB people doesn’t mean that they are not part of the discussion or part of my thoughts and fears, but right now, I have two strong emotions at play: first, my daughter and millions like her and second, the Constitution.

For those of us who grew up with constitutional norms and the sentimentality as well as the reality of the rule of law, who grew up with William Brennan, Thurgood Marshall, Ruth Bader Ginsberg, and for the people following now in the turmoil and unease of an activist court and are looking towards Ketanji Brown Jackson for similar inspiration, the death knell of the Constitution is heart-wrenching. Not as heart-wrenching as the forced birth of pubescent children or the forced trauma of losing a wanted pregnancy as well as the derailment of dreams, but it is still something to be mourned. I’m not sure we can come back. My eternal USA-USA optimism has been shaken to its core these last several years and this term of the Supreme Court has been the nail in the ever lowering coffin.

I studied law for half my college career and that came after a hobby of reading everything law related available, studying in my own way the law, knowing legal precedents and bathing in the light of the dreams of freedom. Re-reading that sentence now, it is so clear that I am speaking from a place of extreme privilege, my whiteness showing starker than the background of the screen I type on. Everything else, my Jewishness, my womanhood, my economic status – all of that is hidden under the whiteness that wrote that beloved Constitution. When I graduated from college, I got rid of most of my textbooks, but I kept ALL of my law books. Why? Well, they were historical. They set precedent with opinions from the greats, both before and during my lifetime. These books would continued to be studied for generations and while they would be added to, they would still be the basis for many rulings to come.

Little did I know.

The year I had jury duty was the year Justice William Brennan retired. I went to Brooklyn Federal Court, after driving over an hour and a half, parking underground, and walking across a public park to the courthouse, and I bought a Time magazine with his picture on the cover. I read it during my lunch before I was assigned to a case. I was excited. Until I listened to the case and discovered the weight of my civic duty. I was a hold-out for awhile, but we sorted it out and I was dismissed with the thanks of a grateful court. I couldn’t wait to do it again.

With one term, one swoop of Russian interference, Republican obstinance and recalcitrance, Senatorial and Presidential corruption, and let’s be honest, overt racism, and those books on my shelf have become obsolete.

Miranda – not required.

Engel v Vitale – coercive prayer

Roe v Wade – no bodily autonomy if you’re a woman, no privacy

MA v EPA – overturned – enjoy your brown air and water

Griswold, Casey, Oberfell – their futures in question

But Skokie? Skokie remains. Oh, unless you’re picketing the Supreme Court justices. In that case, no first amendment rights for you. Who cares about McCullen v Coakley?

This week in Akron, Ohio, a ten year old girl was forced to go to Indiana to obtain an abortion after her rape because a judge ruled that she was three days over the legal limit to get one in Ohio. Truly, the Lord’s work, amirite? During this same week and same town, a Black man (Jayland Walker) was shot in the back sixty times (ninety rounds fired) for running away from a traffic stop.

These two incidents, traumas on families and communities are only a microcosm of what is happening across this country.

It is only a matter of time before a rapist is granted joint custody with their victim for a forced birth baby. Who thinks that this is okay?

We (with SCOTUS leading the way) are dismantling the First Amendment. The most important amendment. So important it comes first, before anything else. I remind you that we are not a Christian nation. We are multicultural, interfaith, NO faith, multidimensional, and to stay free we must act free. All of us. Violating one person’s civil rights, their human rights is a stain for us all.

The First Amendment falls as fascism rises: little by little and then all at once. You are here in the timeline.

Yesterday morning, I attended my church online. I usually attend online. As the mass ended and the congregation was dismissed to relay the Good News, the priest and deacon processed from the altar to the music and singing of America the Beautiful. I can’t say what I would have done had I been there, but at home, online, I turned it off. I thought, and continue to think it’s inappropriate. I get that people want a patriotic song, and as far as patriotic songs go, this one isn’t bad, but as a recessional to mass?

No.

No. No. No.

The song on its own wasn’t the problem. Play it after the mass is actually over, while people are still congregating, but not as part of the closing.

I have two distinct memories of my father’s patriotism. We were at a professional baseball game (The Mets, of course), and I didn’t stand for the National Anthem. It wasn’t a protest. It was a lazy elementary school child. The look he gave me. The same for a school assembly when reciting the Pledge of Allegiance. I had no problem with the Pledge, but my sitting wasn’t an option. This look was accompanied by a whispered admonition. And I remember those moments with my dad. He wasn’t a nationalist; he wasn’t our country can do no wrong, but he knew the importance of that respect and I do too. I don’t think he would appreciate how I feel today and how I don’t want to celebrate Independence Day. Last week, the Supreme Court of the United States took away what little freedom my daughter and I had, and I can’t celebrate that. I hear Black and brown people asking what we’re celebrating in the first place, and I hear them.

I have four books to recommend to everyone and then one more thing:

Bury My Heart at Wounded Knee by Dee Brown
The 1619 Project: A New Origin Story created by Nikole Hannah-Jones
Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy by Adam Jentleson
Allow Me to Retort: A Black Guy’s Guide to the Constitution by Elie Mystal, which I am currently reading.

About six or seven years ago, maybe a bit longer, I was driving in the car with my daughter and she suddenly said through a tight throat and tiny tears that she didn’t want to have a baby. She hadn’t even gotten her period yet. She was under ten or was ten, I don’t remember. What I do remember was trying not to cry because she was so appalled about the idea of having a baby, not the idea of being a mom even though that was kind of foreign to her, but physically being forced to have a baby when she didn’t want one. I said to that she didn’t need to worry about that. No one was going to force her to have a baby. She wanted to know how I knew that. I told her I knew that because I would never let that happen. Never.

And I never will.

Not my daughter, and not yours, and not trans men or non-binary folks. No one.

We won’t go back.

Admit It: This Country is Anti-Women

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Overturning Roe v Wade isn’t pro-life; it’s anti-women.

In addition to being an issue of the 14th Amendment, it is also a First Amendment issue as it violates religious freedom and unconstitutionally imposes what amounts to a “state sanctioned religion” on the rest of us. It violates the establishment clause and it attempts to control women’s choices and their economic independence as well as their basic human rights.

Election Connection Special Edition:

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The Texas Abortion Ban

The Conservative Justices’ Reasoning in the Texas Abortion Case is Legal Mansplaining

This brilliant piece by Slate writer, Dahlia Lithwick is a must read by everyone who calls themselves pro-choice and those who don’t. The idea that the people crying ‘our body, our choice’ over masks are the same ones brutally stomping on the bodies of pregnant people. Stomping is not an exaggeration.

This law is unconstitutional, but somewhat more importantly it is unconscionable. We should be protecting women, transmen, and CHILDREN who find themselves pregnant and unready, for whatever reason, and not forcing them to give birth.

We must remember these draconian laws and constant attempts at controlling our reproduction and our bodies at every election moving forward. GET OUT THE VOTE. Each and every election.

Read the entire article, but this quote from Lithwick really brought it home for me.

The inevitable answer is chilling: This isn’t about guns or speech or money or war. It’s about women, their lives and their bodies and their autonomy. That’s what allows you to do shoddy work, with careless disregard, because who’s going to stop you? You only do the thing in the dead of night, without care or effort, because you believe women are so used to being gaslit that you expect them to just tolerate it. You only do the thing in the dead of night without care or effort because you genuinely believe that they’re only women, and they deserve what they get.

Dahlia Lithwick, Slate

Election Connection: One Week. Seven Days. We’ve Got Work To Do.

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I’ve already voted. I made my plan and followed through. I voted on Saturday. In a typical year, that would mean I’m done for the next twelve months. But this is not a typical year.

Even though I’ve cast my vote for Joe Biden, my work (and yours) is not finished until the end of Election Day.

At that point, others may take up the baton, but hopefully the landslide and mandate will express crystal clearly the will of the American people.

As I was working on what this post was going to be eight days before Election Day, and even as I was writing my notes late last night, things happened that need to be brought to light for prospective voters.

The first is the confirmation of Amy Coney Barrett on the Supreme Court. This was an illegitimate process to confirm a justice whose beliefs are so far opposite of the American people that that alone should disqualify her. Her lack of litigation experience is a second disqualification. Confirming her eight days before the end of an election after sixty million people have already voted is a despicable act by the Senate GOP and especially the evil*, hypocritical Majority Leader McConnell.

Clicking this photo will take you directly to Vote Save America’s Voting Plan. Twitter. (c)2020

The second big item was a Supreme Court ruling that while ballots in Wisconsin can be postmarked by Election Day, they cannot be counted after Election Day. What this means in the real world is that if you mail your ballot in, it may not be counted. Again, McConnell (evil hypocrite) and Postmaster General Louis DeJoy have consistently kept Congress from including voter security monies for the post office and have sabotaged key sorting equipment nationwide. Because of this partisan hackery, please, either vote early  or on Election Day in person or hand deliver your absentee ballot to an official ballot box, to your board of elections, or at the polls on Election Day.

To be sure your vote is counted, have a plan. The following are resources to help you from now through Election Day.

Remember – speak to your family and friends about voting. Be prepared to answer any questions. Direct them to the Biden website to read up on his policy proposals and priorities.

Make sure they’re voting.

Offer to drive people to the polls.

Volunteer – it’s not too late to help (see the links below).

*see his debate with Amy McGrath in Kentucky laughing about not bringing covid relief to the floor for a vote.

Clicking this photo will take you to volunteer opportunities at the Vote Save America website.


Other links:

Vote Save America – Donate to relieve this country of Mitch McConnell’s “leadership”

Vote Save America – Have a Plan to Vote

Vote Save America – Volunteer

I Will Vote

When We All Vote

Follow Marc Elias on Twitter.

What do you do if there is voter intimidation at your poll? Call 1-866-687-8683 (1-866-OUR VOTE)

What do you do if armed “militias” are at your polling place? Georgetown Law has information for all fifty states.

Clicking the photo will take you to We The Action where, if you’re a lawyer, you can sign up to volunteer to protect our vote.

Election Connection: 5 Weeks: SCOTUS

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[OPINION]

I think it’s important to look at this SCOTUS nomination in its totality, and not simply whether or not we like this nominee choice of Amy Coney Barrett. I also think we need to take care not to conflate our strong feelings for Ruth Bader Ginsburg and keep our biases in check when we talk about Barrett’s personal life and instead stick to her judicial record, which is scant. I also believe a little humility is necessary by those pressing for this nominee. Whatever judicial strengths she has, she cannot compare to an icon of RBG’s stature. RBG’s work for women and first head of the ACLU’s Women’s Project steered much of the equal rights we women (and men) enjoy today. Not everyone can be a Thurgood Marshall or a Ruth Bader Ginsburg, and that doesn’t necessarily disqualify someone, including Judge Barrett.

As a matter of course, this nomination absolutely should not go forward. Even without Mitch McConnell’s blatant hypocrisy, we aren’t too close to an election – we are in the middle of an election. Over one million voters have already spoken with millions more to vote between now and the conclusion of the election on November 3rd.

I do understand Barrett’s unwillingness to step aside somewhat; the President would only choose someone else, although stepping aside on principle would show us what principles she has, as not stepping aside has already shown us.

Very simply, my opinion is clear-eyed.

This President, who was impeached earlier this year, and has now been reported to have engaged in tax fraud should not be the person to nominate a new Supreme Court justice. There are still allegations that a deal was worked out for Justice Kennedy to retire. This President admitted on tape his malfeasance in conducting the response to the COVID-19 pandemic as it invaded its way across our country. He failed in his stewardship, and he should not be rewarded by the complicit and cowardly Senate; the same Senate and Majority Leader who refused to work with the nation’s first Black President on any legislative agenda. The same man who let his racism cloud his solemn oath to guard the Constitution.

The Election is now. People have voted. People are voting. Right now.

When the election is certified, if President Trump wins re-election, he can then nominate someone (including Amy Coney Barrett) for SCOTUS. However, if the President-Elect is Joe Biden, then we, as a country must wait until after the inauguration on January 20, 2021, and let the duly elected President follow the will of the American people, and nominate the justice who will fill Justice Ginsburg’s seat.

Although irreplaceable, someone will eventually take her place on the High Court and that someone should be nominated by the President chosen by the American electorate.

Go to Vote Save America and see how you can help get out the vote!

Justice John Paul Stevens (1920-2019)

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​I have always been fascinated by the legal system and the law. My whole life, including reading for pleasure has included government, history, and legal issues. I have an analytical and argumentative mind and nothing comes close to both of those attributes more than the law.

In high school my favorite class senior year was Everyday Law, which would most likely be compared to a civics class – what to do if you get pulled over? What are your rights when approached by a polic officer? Your neighbor is infringing on your property, what do you do? That sort of thing. It was an elective, and I still really believe this type of class should be required for students to prepare them for the real world they are about to enter.

I have been privileged to live in a time where I have witnessed the ascension of the first African-American, the first woman, and the first Latina to the Supreme Court (Marshall, Day O’Connor, and Sotomayor, respectively).

When I served jury duty, the cover of Time magazine was Chief Justice William Brennan who was retiring. He was one of my favorite justices and his court more than any other cemented my philosophy firmly on the liberal side of things, although I would characterize my views as less liberal and more founded in civil rights and equality.

I continued reading and studying the law throughout my life, and majored in political science/pre-law for two years of college. Constitutional Law was my favorite class, and I loved my professor who I had for all three of my law classes. I still have all of those textbooks and I’ve added The Law of Writing to my collection. My enthrallment has never subsided.

Until 2010 when he retired, for as long as I can remember, Justice John Paul Stevens has been a staple on the Supreme Court. As the Bush years passed, and the liberal wing was replaced by more conservative jurists, Justice Stevens remained stalwart, continuing the tradition of upholding the Constitution through law and not political partisanship. It is essential to remember that Justice Stevens was appointed by a Republican, President Gerald Ford as was Brennan (by President Dwight D. Eisenhower).

John Paul Stevens was the third longest serving justice on the Supreme Court. When he joined the Burger Court (soon to become the Brennan Court), I had just turned nine and for my entire life since, Stevens became a member of one of the most iconic groups of justices. While all generations have heroes to look up to and all Supreme Courts make important, life changing, country-wide decisions, I was blessed with the ability to follow the Supreme Court that included John Paul Stevens as well as his iconic colleagues.

Justice Stevens read briefs, and listened to oral arguments, deciding cases such as Hamdan v Rumsfield, Massachusetts v EPA, and dissenting on Citizens United v FEC and Bush v Gore as well as DC v Heller. Related to this case, he believes the 2nd Amendment should be readdressed, whether appealed or amended is still to see. He hasn’t been on the court in nearly a decade, but his voice will be missed in our world.

Rest in peace, Justice Stevens.

As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
“Excerpts From Ruling on Internet: ‘Statute Abridges the Freedom of Speech'”. http://www.nytimes.com. June 27, 1997. 

Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.
Church & State Editorial, http://www.au.org. May 2010.

A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
Dissenting, Citizens United v. Federal Election Commission, 558 U.S. ___ (2010)

Preet Bharara had a lovely reflection on Justice Stevens

Justice John Paul Stevens – A Maverick on the Bench Dies at 99

Justice Stevens with Justice Elena Kagan, who took his place upon his retirement. Photo from Supreme Court government website. (c)2019

This Land – A New Podcast Series from Crooked Media

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Beginning tomorrow on Crooked Media is an eight episode podcast with Rebecca Nagle about two murders, a Supreme Court case and the land in Oklahoma. I can’t wait to hear what this journalist and Cherokee Nation citizen has to say about this compelling story.

You can subscribe now and then get notified when it’s available for download and listening. I’m already subscribed on PlayerFM, and can’t wait for it to be downloaded. 

Find it wherever you regularly get your podcasts.

​This is how Crooked Media describes it: 

“An 1839 assassination of a Cherokee leader. A 1999 small town murder. Two crimes collide in a Supreme Court case that will decide the fate of one man and nearly half of the land in Oklahoma. Hosted by Rebecca Nagle, Oklahoma journalist and citizen of Cherokee Nation, This Land traces how a cut and dry homicide opened up an investigation into the treaty rights of five Native American tribes. Tune in, beginning June 3rd to Crooked Media’s 8-episode series to find out how this unique case could result in the largest restoration of tribal land in US history when it answers one fundamental question: Who owns this land?”

This Land 

Election Reflection – 21 DAYS TIL MIDTERMS

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VOTE!

Vote Save America – check your registration. People are being purged and voters, especially minorities and Democratic voters are being suppressed. If Republicans had a message and could take the responsibility of governing, they wouldn’t need to cheat by suppressing legal voters from making their choices.

In Georgia, the Republican running against Stacey Abrams is also the Secretary of State of the state of Georgia, and is the one who validates the security and legitimacy of the election, including certifying the election. Currently, there are 53,000 voter registrations that are being held up. 70% of them are African-American voters.

Georgia Lawsuit is Latest…
The Supreme Court just ruled, merely a few weeks ahead of this year’s election that the North Dakota law requiring street addresses (rather than post office boxes) is legal and upheld. This disenfranchises many Native Americans voters, a voting group that primarily goes for the Democratic party. Living on reservations and on rural routes, the post office does not assign street addresses. This is significant.

Native Americans Decry Supreme Court Ruling on Voter ID in ND

Indiana is trying to purge voters in the weeks before this midterm election.

Federal Judge Blocks Indiana…

Again, I ask, what are Republican politicians afraid of?

We are still at risk from Russian election interference. Nothing has been fortified since the 2016 election that has been proved to have been compromised.

I’m worried.

You should be also.

Check your registration, drive your friends to the polls, and VOTE!